The defendant in this criminal action seeks to dismiss both counts of the indictment against him on the ground that the indictment was filed in violation of the Speedy Trial Act, 18 U.S.C. §§ 3161 et seq. For the reasons indicated below, count one of the indictment is dismissed without prejudice; count two of the indictment is not dismissed.

FACTS

The defendant, Romeo Cortinas, was arrested on September 5, 1991 pursuant to a warrant issued by Magistrate Judge Carter. That warrant was predicated on a complaint that charged Cortinas with conspiring to distribute and to possess with intent to distribute cocaine. Memorandum of Government at 18. The complaint alleged that Cortinas had agreed to pay a coconspirator $ 1,000 to transport two kilograms of cocaine to Buffalo, New York.

Neither party contends that any days between the beginning of the first speedy-indictment waiver on October 8, 1991 and the end of the last waiver on December 20, 1991 are includable. The defendant contends, however, that seven days elapsed between December 20, 1991 and December 27, 1991 -- the date of indictment. The government, on the other hand, argues that the last waiver, which was executed on December 6, 1991, remained effective through December 20, 1991; hence, the government concludes, December 20, 1991 cannot be counted in the speedy-indictment calculus. Unfortunately, the parties have not supplied this court with the text of the relevant waiver agreement, and it is thus difficult to ascertain whether or not December 20, 1991 constitutes an includable day. In any event, the twenty-eight includable days before October 8, 1991 along with the six or seven includable days in December total either thirty-four or thirty-five includable days on the speedy-indictment clock.

The court shall consider, among others, the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of [the Speedy Trial Act] and on the administration of justice.

18 U.S.C. § 3162(a)(1). Taken together, these three factors indicate that the court should dismiss count one of this indictment without prejudice.

First, as to the seriousness of the offense charged, the appellate courts have generally considered cases that involve even small quantities of proscribed drugs to constitute "serious" offenses for purposes of the Speedy Trial Act. See United States v. Simmons, 786 F.2d 479, 485 (2d Cir. 1986) ("possession of six glassine envelopes containing heroin with intent to distribute" held to be "serious" under Section 3162(a)(2)); United States v. Brown, 770 F.2d 241, 244 (1st Cir. 1985), cert. denied, 474 U.S. 1064, 88 L. Ed. 2d 789, 106 S. Ct. 816 (1986) (conspiracy and possession with respect to four ounces of cocaine held to be "undeniably serious" under Section 3162(a)(2)); United States v. Tunnessen, 763 F.2d 74, 79 (2d Cir. 1985) (possession of four pounds of cocaine considered to be "serious" under Section 3162(a)(2)); United States v. Russo, 741 F.2d 1264, 1267 (11th Cir. 1984) (methadone offense conceded to be "serious" under Section 3162). Along these lines, the government argues that "Congress views [the] crime [with which Cortinas is charged] as grave enough to warrant a sentence of between five and forty years." Memorandum of Government at 9. Notwithstanding that the government is, in effect, asking this court to employ its own discretion to promote the dubious congressional practice of mechanically characterizing the quality of drug offenses by the type and quantity of drug involved, the case law is quite clear that the offense in this case is in fact "serious" under Section 3162(a)(1). Hence, the first factor of the relevant test weighs in favor of dismissal without prejudice. Indeed, the Second Circuit has remarked that: "Where the crime charged is serious, the sanction of dismissal with prejudice should ordinarily be imposed only for serious delay." Simmons, 786 F.2d at 485.

The second factor for the court to consider is the entirety of the "facts and circumstances" that led to the violation of Section 3161(b). The government first correctly points out that the length of the delay in this case -- either six or seven days over the permissible thirty-day period -- is, at most, a minor infraction of Section 3161(b). See United States v. Hernandez, 863 F.2d 239, 244 (2d Cir. 1988) (Korman, J.) ("The fourteen-day delay here borders on being de minimis. . . ."). Thus, the length of the delay itself does not indicate that count one should be dismissed with prejudice.

Although the defendant is correct that case law in other circuits has established that a count not otherwise subject to dismissal under the Speedy Trial Act may be dismissed if it simply "gilds" a count that must be dismissed id. at 138, that doctrine is inapplicable here. Conspiracy to distribute and to possess illegal drugs is a charge that is entirely distinct from a substantive possession charge; as such, one will survive the dismissal of the other on speedy trial grounds. Cf. United States v. Badr, 604 F. Supp. 569, 580 (E.D.N.Y. 1985) (conspiracy to distribute and to possess and substantive possession not same "charge" for purposes of Section 3162(a)(1)). The cases cited by the defendant are inapposite: United States v. Oliver, 683 F. Supp. 35 (E.D.N.Y. 1988), refused to apply the "gilding" test; and United States v. Bilotta, 645 F. Supp. 369, 371-72 (E.D.N.Y. 1986), aff'd, 835 F.2d 1430 (1987), simply found that conspiracy counts in a superseding indictment were mere restatements of conspiracy counts in an earlier version of the indictment. Thus, there is no basis for dismissal of count two of the indictment against Cortinas.

CONCLUSION

For the reasons indicated above, the court hereby dismisses the first count of the indictment without prejudice.

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